Common use of Section 338(h)(10) Election Clause in Contracts

Section 338(h)(10) Election. Buyer and Seller shall join in making an election under Code §338(h)(10) (and any corresponding elections under state, local, or foreign tax law) (collectively a “Section 338(h)(10) Election”) with respect to the purchase and sale of the Company hereunder. Buyer shall prepare an allocation of the applicable portion of the Purchase Price (and all other capitalized costs), to be jointly updated by Buyer and Seller for any adjustments to the Purchase Price pursuant to Sections 1.2 and 1.3, among the assets of the Company in accordance with Section 338(h)(10) of the Code and Treasury Regulations thereunder (and any similar provision of state, local or non-U.S. law, as appropriate). Buyer shall deliver its proposed allocation to Seller in writing within thirty (30) days following the final determination of the Closing Date Purchase Price pursuant to Section 1.2 (but in no event later than four (4) months following the Closing Date) and, to the extent that the Seller does not agree with such proposed allocations, it shall so notify Buyer in writing within thirty (30) days of receipt of the proposed allocations. Seller and Buyer shall in good faith cooperate with the other to resolve any issues with Buyer’s proposed allocations; provided, however, that if Seller and Buyer are unable to agree on the proposed allocations within twenty (20) days after the Seller’s delivery of its notice of disagreement with such proposed allocations, then resolution of any such disagreement shall be determined by a nationally recognized accounting firm agreeable to both Seller and Buyer and the determination by such accounting firm shall be binding on Buyer and Seller. If the parties elect to make a Section 338(h)(10) Election, Buyer, Seller the Company and their Related Persons and Affiliates shall report, act and file Tax Returns (including, but not limited to IRS Form 8023 and 8883) in all respects and for all purposes consistent with the allocation finally determined pursuant to this Section 6.8. If the parties elect to make a Section 338(h)(10) Election, none of Buyer, Seller, the Company nor their Related Persons and Affiliates shall take any position (whether in audits, Tax Returns, or otherwise) which is inconsistent with such final allocation unless required to do so by law.

Section 338(h)(10) Election. Buyer and Seller shall join in making Subject to compliance by the Purchaser with the Tax Timetable, with respect to the acquisition of the Shares hereunder, the Purchaser reserves the right to make an election under Code §Section 338(h)(10) of the Code at any time on or prior to the due date for making any such election as provided for by Section 338(h)(10) of the Code and the Regulations thereunder; provided, however, that the Sellers shall have no obligation to cooperate with the Purchaser with respect to such an election if (1) the Purchaser has not complied in all material respects with the requirements of the Tax Timetable required to be performed by the Purchaser or (2) the Sellers have not received the Tax Indemnification Payment by April 11, 2008. If the Purchaser makes such election and the Purchaser makes the Tax Indemnification Payment (as defined below) to each of the Sellers, the Sellers and the Purchaser shall jointly make an election under Section 338(h)(10) of the Code (and any corresponding elections under state, local, state or foreign local tax law) (collectively collectively, a “Section 338(h)(10) Election”) with respect ). The term “Tax Indemnification Payment” shall mean, for each Seller, the amount that the Purchaser shall be required to pay to such Seller equal to the purchase aggregate amount reasonably required to reimburse such Seller on a net, after-tax basis for any cost, loss, liability or expense (including any increase in liability for Taxes, penalties, and interest and any reasonable legal and accounting fees) reasonably incurred in connection with: (1) the aforesaid Section 338(h)(10) Election, and (2) the receipt not later than April 11, 2008 by such Seller from the Purchaser of the Tax Indemnification Payment. If the Purchaser makes a Tax Indemnification Payment to a Seller (or, as provided by the following paragraph), to the Tax Escrow Agent on or prior to April 11, 2008, such Seller will take, and will cooperate with the Purchaser and with each other Seller to take, all actions necessary and appropriate (including filing such forms, returns, elections, schedules and other documents as may be required) to effect and preserve a timely Section 338(h)(10) Election in accordance with the Code and the regulations thereunder, or any successor provisions. If the Purchaser has elected to make the Section 338(h)(10) Election, and makes the Tax Indemnification Payment to each of the Sellers, the Sellers and the Purchaser shall, for Tax purposes, report the sale of the Company hereunder. Buyer shall prepare an allocation of the applicable portion of the Purchase Price (and all other capitalized costs), to be jointly updated by Buyer and Seller for any adjustments to the Purchase Price Shares pursuant to Sections 1.2 and 1.3, among this Agreement in a manner which is consistent with the assets of the Company in accordance with Section 338(h)(10) of the Code Election and Treasury Regulations thereunder (and shall take no position contrary thereto or inconsistent therewith in any similar provision of stateTax return or in any discussion with or proceeding before any taxing authority, local or non-U.S. law, as appropriate)otherwise. Buyer shall deliver its proposed allocation to Seller in writing within thirty (30) days following the final determination of the Closing Date Purchase Price pursuant to Section 1.2 (but in no event later than four (4) months following the Closing Date) and, to the extent that the Seller does not agree with such proposed allocations, it shall so notify Buyer in writing within thirty (30) days of receipt of the proposed allocations. Seller and Buyer shall in good faith cooperate with the other to resolve any issues with Buyer’s proposed allocations; provided, however, that if Seller and Buyer are unable to agree on the proposed allocations within twenty (20) days Promptly after the Seller’s delivery of its notice of disagreement with such proposed allocations, then resolution of any such disagreement shall be determined by a nationally recognized accounting firm agreeable to both Seller and Buyer and the determination by such accounting firm shall be binding on Buyer and Seller. If the parties elect deciding to make a Section 338(h)(10) Election, Buyer, the Purchaser shall notify the Sellers in writing of such decision so that each Seller has sufficient time to calculate the Company and their Related Persons and Affiliates shall report, act and file Tax Returns (including, Indemnification Payment to be made by the Purchaser to such Seller but not limited to IRS Form 8023 and 8883) in all respects and for all purposes consistent with no event later than the allocation finally determined pursuant to this Section 6.8date specified in the Tax Timetable. If As soon as practicable following the parties elect receipt by such Seller of the irrevocable written notice from the Purchaser of its decision to make a Section the 338(h)(10) Election, none but in any event not later than the date specified in the Tax Timetable for the same, each Seller shall deliver a written statement containing the amount of Buyerthe Tax Indemnification Payment which is claimed to be due to such Seller and the manner in which the amount of such Tax Indemnification Payment has been calculated to the Purchaser. If the Purchaser disagrees with a Seller’s calculation of the Tax Indemnification Payment, then the Purchaser shall pay (1) to such Seller the amount of the Tax Indemnification Payment as calculated by the Purchaser for such Seller (the “Purchaser’s Amount”) and (2) to the Tax Escrow Agent an amount equal to (i) the amount of the Tax Indemnification Payment which the Purchaser disagrees with (and as calculated by such Seller) less (ii) the Purchaser’s Amount. The Tax Escrow Agent shall agree to hold the Purchaser’s Amount for the Purchaser and such Seller until the Purchaser and such Seller resolve their differences with respect to the amount of the disputed Tax Indemnification Payment in accordance with the procedures described in Section 2.3.4 (with respect to the calculation of the Closing Net Working Capital). Upon payment by the Purchaser to the Tax Escrow Agent of the amount of the disputed Tax Indemnification Payment, the Company nor their Related Persons and Affiliates shall take any position (whether in audits, Seller that has computed the Tax Returns, or otherwise) Indemnification Payment which is inconsistent with such final allocation unless required to do so by law.in

Section 338(h)(10) Election. Buyer and Seller The Sellers shall join with the Buyer in making an a timely election under Code IRC §338(h)(10) (and any corresponding elections election under state, local, or foreign tax law) (collectively a “Section 338(h)(10) Election”state and local Legal Requirements) with respect to the purchase and sale of the Company hereunderShares hereunder (collectively, a “Section 338(h)(10) Election”). The Buyer and the Sellers shall report the Contemplated Transactions in a manner consistent with the Section 338(h)(10) Election. Neither the Buyer nor any Seller shall take any action that is inconsistent with the Section 338(h)(10) Election or its validity under the IRC and the applicable Treasury Regulations. Within ninety (90) days after the Closing Date, the Buyer shall prepare deliver to the Sellers’ Representative an allocation schedule (the “Allocation Schedule”) setting forth the Buyer’s good faith calculation of the aggregate deemed sales price, the adjusted grossed-up basis, and the allocation of the applicable portion of the Purchase Price (aggregate deemed sales price and all other capitalized costs), to be jointly updated by Buyer and Seller for any adjustments to the Purchase Price pursuant to Sections 1.2 and 1.3, adjusted grossed-up basis among the assets of the Company in accordance with the principles of Treasury Regulations §1.338-6, taking into due consideration the suggested allocations set forth in the allocation schedule in Section 338(h)(10) 7.2 of the Code Disclosure Schedules. If, within fifteen (15) days after his receipt of the Allocation Schedule, the Sellers’ Representative notifies the Buyer in writing that the Sellers object to one or more items reflected in the Allocation Schedule (indicating each disputed item and Treasury Regulations thereunder (the basis for their objection thereto), the Sellers’ Representative and any similar provision of state, local or non-U.S. law, as appropriate). the Buyer shall deliver its proposed allocation negotiate in good faith to Seller in writing resolve such dispute; provided, however, that, if the Sellers’ Representative and the Buyer are unable to resolve any dispute with respect to the Allocation Schedule within thirty (30) days following the final determination of the Closing Date Purchase Price pursuant to Section 1.2 (but in no event later than four (4) months following the Closing Date) and, to the extent that the Seller does not agree with such proposed allocations, it shall so notify Buyer in writing within thirty (30) days of Buyer’s receipt of the proposed allocations. Seller and Buyer shall in good faith cooperate with the other to resolve any issues with BuyerSellers’ Representative’s proposed allocations; providedobjection notice, however, that if Seller and Buyer are unable to agree on the proposed allocations within twenty (20) days after the Seller’s delivery of its notice of disagreement with such proposed allocations, then resolution of any such disagreement dispute shall be determined resolved by a nationally recognized accounting firm agreeable jointly selected by the Buyer the Sellers’ Representative within five (5) Business Days after the expiration of such 30-day period (or if the parties are unable to both Seller agree upon a nationally recognized accounting firm, each party shall select a nationally recognized accounting firm and the two firms together shall select a third a nationally recognized accounting firm) (the “Accounting Referee”). The Accounting Referee shall make a determination as soon as practicable within 30 days (or such other time as the Buyer and the determination by such accounting firm Sellers’ Representative shall agree in writing) after their engagement, and their resolution of the disputed items shall be conclusive and binding upon the parties hereto. The fees and expenses of such Accounting Referee shall be allocated between the Sellers and the Buyer based on their relative success with respect to the disputed items (as finally determined by the Accounting Referee). For example, if the Sellers’ Representative challenges the calculation of an amount of $100,000, but the Accounting Referee determines that the Sellers’ Representative has a valid claim for only $40,000, the Buyer shall bear forty percent (40%) of the fees and Sellerexpenses of the Accounting Referee and the Sellers shall bear the other sixty percent (60%) of such fees and expenses. If the Sellers’ Representative fails to deliver a dispute notice within the aforementioned 15-day period, then the Buyer’s Allocation Schedule shall be final and binding on the parties elect to make a hereto. The Buyer shall prepare and file Forms 8023 and 8883 and such other documents required in connection with the Section 338(h)(10) Election, Buyer, Seller the Company and their Related Persons and Affiliates shall report, act and file Tax Returns (including, but not limited to IRS Form 8023 and 8883) in all respects and for all purposes consistent with the allocation finally determined pursuant to this Section 6.8. If the parties elect to make a Section 338(h)(10) Election, none of Buyer, Seller, the Company nor their Related Persons and Affiliates shall take any position (whether in audits, Tax Returns, or otherwise) which is inconsistent with such final allocation unless required to do so by law.)

Section 338(h)(10) Election. Seller and Buyer and Seller shall join in making an election under Code §Section 338(h)(10) (of the Code with respect to the Connecticut Companies and any corresponding elections under statestate or local law (each, local, or foreign tax law) (collectively a “Section 338(h)(10) Election”) with respect ). As reasonably requested from time to time (whether before, at or after the Closing), each of Seller and Buyer will assist and provide the necessary information to the purchase other in connection with the preparation of any form or document required to effect a valid and sale timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state or local law and any schedules or attachments thereto (collectively, “Section 338 Forms”). Upon delivery to Seller of any Section 338 Form that has been prepared in accordance with this Section 13.10, Seller will duly and promptly execute such form and deliver it to Buyer. If Buyer determines that any change is to be made in a Section 338 Form previously executed and delivered to Seller, then Buyer may prepare a new Section 338 Form in accordance with this Section 13.10 and deliver such new Section 338 Form to Seller, and Seller will duly and promptly execute such form and deliver it to Buyer. After the Company hereunder. Closing Date but not more than ninety (90) days following the Closing Date, Buyer shall prepare and deliver to Seller an allocation of schedule (the applicable portion “Allocation Schedule”) setting forth the allocation of the Purchase Price (and all the liabilities of the Acquired Companies, plus other capitalized costs)relevant items, to be jointly updated by Buyer and Seller for any adjustments to the Purchase Price pursuant to Sections 1.2 and 1.3, among the assets of the Company Acquired Companies for Income Tax purposes in accordance a manner consistent with Section 338(h)(10) of the Code and Treasury Regulations thereunder (and any similar provision of state, local or non-U.S. law, as appropriate)fair market values. Buyer shall deliver its proposed allocation to Seller in writing within Within thirty (30) days following the final determination after Seller’s receipt of the Closing Date Purchase Price pursuant Allocation Schedule, Seller will deliver to Section 1.2 Buyer a written notice (but in no event later than four (4reasonable detail) months following indicating whether Seller disagrees with the Closing Date) and, Allocation Schedule. If Seller fails to object in writing to the extent that Allocation Schedule within such 30-day period, Seller shall be deemed conclusively to agree to the Allocation Schedule and the Allocation Schedule will be final and binding upon the parties. If Seller does not agree delivers to Buyer a notice of disagreement, Buyer and Seller will work together in good faith to resolve such disagreement. If Buyer and Seller have been unable to resolve such disagreement, Buyer and Seller shall submit such disagreement to the Expert and the Expert shall render its determination with such proposed allocations, it shall so notify Buyer in writing within thirty (30) days after the submission. The Allocation Schedule will be subsequently amended as required by applicable law as the parties may mutually agree. Each of receipt of the proposed allocations. Buyer, Seller and Buyer shall their Affiliates will file all Tax Returns in good faith cooperate a manner consistent with the other Allocation Schedule (as amended pursuant to resolve any issues with Buyer’s proposed allocations; provided, however, that if Seller and Buyer are unable to agree on the proposed allocations within twenty (20) days after the Seller’s delivery of its notice of disagreement with such proposed allocations, then resolution of any such disagreement shall be determined by a nationally recognized accounting firm agreeable to both Seller and Buyer and the determination by such accounting firm shall be binding on Buyer and Sellerthis Section 13.10). If the parties elect to make Except for a Section 338(h)(10) ElectionElection with respect to the Connecticut Companies, Buyer, Seller the Company and their Related Persons and Affiliates Buyer shall report, act and file Tax Returns (including, but not limited to IRS Form 8023 and 8883) in all respects and for all purposes consistent with the allocation finally determined pursuant to this Section 6.8. If the parties elect be permitted to make an election under Section 338 of the Code with respect to any Acquired Company that is a domestic corporation within the meaning of Section 338(h)(107701(a)(4) Election, none of Buyer, Seller, the Company nor their Related Persons and Affiliates shall take any position (whether in audits, Tax Returns, or otherwise) which is inconsistent with such final allocation unless required to do so by lawCode.

Section 338(h)(10) Election. Seller and Buyer and Seller shall join in making an election under Code §Section 338(h)(10) of the Code (and any corresponding elections under state, local, or foreign tax law) (collectively a “Section 338(h)(10) Election”state and local Tax Law) with respect to the purchase and sale of the Company hereunder. (the “Section 338(h)(10) Elections”) and Buyer shall prepare make an allocation election under Section 338(g) of the applicable portion Code (and any corresponding elections under state and local Tax Law) with respect to the indirect purchase of the Purchase Price non-U.S. Subsidiaries (the “Section 338(g) Elections,” and, together with the “Section 338(h)(10) Elections,” the “Section 338 Elections”). The Parties shall reasonably cooperate with and all provide the necessary information to the other capitalized costs), Party to permit the Section 338 Elections to be jointly updated by Buyer made and Seller for take all actions necessary and appropriate (including filing IRS Forms 8023 and 8883 together with all required attachments and any adjustments necessary forms, returns, elections, schedules and other documents) as may be required to effect and preserve timely the Purchase Price pursuant to Sections 1.2 Section 338 Elections. The Parties agree that the “aggregate deemed sales price” (as defined in Treasury Regulations section 1.338-4) and 1.3, the “adjusted gross-up basis” (as defined in Treasury Regulations section 1.338-5) shall be allocated among the assets of the Company Company, and further among its non-U.S. Subsidiaries, in accordance with Section 338(h)(10Treasury Regulations sections 1.338-6 and 1.338-7 and, with respect to the asset-level allocation, the principles set forth on Schedule 10.1(f) attached hereto (the “Allocation”). Within ninety (90) days after the final determination of the Code and Treasury Regulations thereunder purchase price pursuant to Section 2.2, Buyer shall prepare a schedule setting forth the Allocation (and any similar provision of statethe “Allocation Schedule”), local or non-U.S. law, as appropriatewhich shall conform to Schedule 10.1(f). Seller shall be permitted to review and approve the Allocation Schedule. Seller shall notify Buyer of any comments to the Allocation Schedule within thirty (30) days after Seller’s receipt of the Allocation Schedule. Buyer and Seller shall deliver its proposed allocation attempt in good faith to Seller in writing within resolve any differences with respect to the Allocation Schedule during the thirty (30) days following the final determination delivery of the Closing Date Purchase Price pursuant Seller’s comments. If Buyer and Seller are unable to Section 1.2 (but in no event later than four (4) months following the Closing Date) and, to the extent that the Seller does not agree with resolve such proposed allocations, it shall so notify Buyer in writing differences within such thirty (30) days day period, then any remaining disputed matters shall be submitted to the Independent Accountant for resolution in accordance with the procedural principles of receipt Section 2.2(b); provided that Buyer and Seller agree that for purposes of the proposed allocationsAllocation Schedule, the principles set forth in Schedule 10.1(f) shall apply, and the Independent Accountant shall be required to follow the principles set forth therein in resolving any such dispute. Except as required by a “determination” within the meaning of Section 1313(a) of the Code, Seller and Buyer shall in good faith cooperate with the other agree that they will not take, or cause or permit to resolve any issues with Buyer’s proposed allocations; providedbe taken, however, that if Seller and Buyer are unable to agree on the proposed allocations within twenty (20) days after the Seller’s delivery of its notice of disagreement with such proposed allocations, then resolution of any such disagreement shall be determined by a nationally recognized accounting firm agreeable to both Seller and Buyer and the determination by such accounting firm shall be binding on Buyer and Seller. If the parties elect to make a Section 338(h)(10) Election, Buyer, Seller the Company and their Related Persons and Affiliates shall report, act and file Tax Returns (including, but not limited to IRS Form 8023 and 8883) in all respects and for all purposes consistent with the allocation finally determined pursuant to this Section 6.8. If the parties elect to make a Section 338(h)(10) Election, none of Buyer, Seller, the Company nor their Related Persons and Affiliates shall take any position (whether in auditson any Tax Return that would be inconsistent with, Tax Returns, prejudice or otherwise) which is inconsistent with such final allocation unless required to do so by law.otherwise adversely affect the Allocation Schedule. 42

Section 338(h)(10) Election. (i) If Buyer and notifies Seller shall join in making writing of its intention to make an election under Code §338(h)(10) (and any corresponding elections under state, local, or foreign tax law) (collectively a “Section 338(h)(10) Election”) with respect to the purchase and sale of the Company hereunder. Buyer shall prepare an allocation of the applicable portion of the Purchase Price (and all other capitalized costs), to be jointly updated by Buyer and Seller for any adjustments to the Purchase Price pursuant to Sections 1.2 and 1.3, among the assets of the Company in accordance with Section 338(h)(10) of the Code and Section 1.338(h)(10)-1 of the Treasury Regulations promulgated thereunder (and any similar provision of state, comparable elections available under state or local or non-U.S. law, as appropriate). Buyer shall deliver its proposed allocation to Seller Tax law in writing within thirty (30) days following the final determination respect of the Closing Date Purchase Price pursuant to Section 1.2 (but in no event later than four (4) months following the Closing Date) and, to the extent that the Seller does not agree with such proposed allocations, it shall so notify Buyer in writing within thirty (30) days of receipt purchase of the proposed allocations. Seller and Buyer shall in good faith cooperate with Shares (the other to resolve any issues with Buyer’s proposed allocations; provided, however, that if Seller and Buyer are unable to agree on the proposed allocations “Election”) within twenty ninety (2090) days after the Closing Date, Seller shall join with Buyer in timely making the Election and in taking all legally required steps to effectuate the same. The balance of this Section 7.14(h) only applies if Buyer elects to make the Election pursuant to the preceding sentence. Buyer shall, with the assistance and cooperation of Seller’s delivery , prepare all Internal Revenue Service Forms 8023 and 8883 and any similar state or local forms (together with any schedules or attachments thereto) that are required by Section 338 of its notice the Code and the underlying Treasury Regulations (or any comparable applicable provision of disagreement state or local law) (collectively, the “Section 338 Forms”) in accordance with applicable Tax laws. Subject to the provisions of Section 7.14(h)(ii), Buyer shall deliver the Section 338 Forms to Seller at least 20 days prior to the due date of filing and, if Seller finds such proposed allocations338 Forms to be reasonably acceptable, then resolution Seller shall deliver to Buyer signed and completed Section 338 Forms, as required under Section 338(h)(10) of the Code and analogous provisions of state or local law, at least 10 days prior to the due date of filing. Seller and Xxxxx shall each adopt and abide by the Section 338 Forms for purposes of all income Tax Returns filed by them and shall not take any position inconsistent therewith in connection with any examination of any such disagreement Tax Return, any refund claim, or any Proceeding unless there has been a final determination of a Governmental Body which finally and conclusively establishes the amount of any liability for Taxes. In the event that the Election or purchase price allocation described in this Section 7.14(h) is disputed by any taxing authority, the party receiving notice of the dispute shall be determined by a nationally recognized accounting firm agreeable to both Seller and Buyer promptly notify the other parties hereto of such dispute and the determination by such accounting firm parties hereto shall be binding on Buyer consult and Seller. If cooperate with each other concerning resolution of the parties elect to make a Section 338(h)(10) Election, Buyer, Seller the Company and their Related Persons and Affiliates shall report, act and file Tax Returns (including, but not limited to IRS Form 8023 and 8883) in all respects and for all purposes consistent with the allocation finally determined pursuant to this Section 6.8. If the parties elect to make a Section 338(h)(10) Election, none of Buyer, Seller, the Company nor their Related Persons and Affiliates shall take any position (whether in audits, Tax Returns, or otherwise) which is inconsistent with such final allocation unless required to do so by lawdispute.